WITHDRAWING CONSENT DURING INTERCOURSE:
California's Highest Court Clarifies the Definition of Rape

By SHERRY F. COLB

Wednesday, Jan. 15, 2003

Earlier this month, the Supreme Court of California confronted an important issue about how rape should be defined under the law. In People v. John Z., the court held that a woman who initially consents to sexual intercourse does not thereby give up her right to end the encounter at whatever point she chooses. In other words, when a woman tells her partner to stop, and he forces her to continue, he is guilty of rape.

One could imagine difficult factual variations, in which the woman's communication is ambiguous or her partner's compliance almost, but not quite, immediate. The basic ruling, however, should not be controversial. If a woman (or a man, for that matter) is clear in conveying the desire to end a sexual interaction, a decision forcibly to disregard that desire is an instance of rape.

Of greater interest than the California court's decision itself, is the fact that the court took the case in order to resolve a lower court split over the issue. According to at least one court in the state of California, then, for purposes of rape law, consent to penetration - once given - may not be withdrawn. And courts in other states have held the same.

Such a position rests on outdated ideas about the harm of rape and the biological imperatives of men who are engaged in sexual intercourse.

An Old View of the Harm of Rape

In People v. Vela - one of the cases the Supreme Court overruled with its recent decision - a California appellate court had held that as long as an alleged victim gives consent prior to penetration, there is no rape, despite the withdrawal of consent during intercourse.

The Vela court cited precedents from Maryland and North Carolina as persuasive authority. (Of course, out-of-state cases do not bind California courts, but California courts may nonetheless be swayed by their analysis). The majority reasoned that "the essence of the crime of rape is the outrage to the person and feelings of the female resulting from the nonconsensual violation of her womanhood.... If [after consenting to penetration,] she withdraws consent during the act of sexual intercourse, and the male forcibly continues the act without interruption... the sense of outrage to her person and feelings could hardly be of the same magnitude [as would the disregard of an initial refusal] ...."

Though the court speaks of the woman's person and feelings, its use of the words "violation of her womanhood" evokes an earlier century - a time when a woman who was no longer "intact" would have much less cause to feel violated by rape than her purer sister. The court's argument, then, suggests a continuum of harms, one in which sex without consent is in some instances very bad; in some, not so bad; and in some, perfectly fine.

Consider the greatest "outrage" along the Vela court's implicit scale. The virgin who has saved herself for her wedding night has the strongest interest in avoiding unwanted intercourse. Her purity as a maiden hangs in the balance, and any man who would disregard that purity commits a grave offense against her and her family. Indeed, in the Bible, a man who rapes a virgin is said to owe her father damages and is expected to marry his victim. In that way, presumably, he can ensure that her reduced market value does not eliminate her prospects for marriage and a family.

Another Antiquated View: "Promiscuous" Women Suffer Less From Rape

In modern secular cultures, by contrast, non-virgins also have the right not to be raped. And, of course, a rapist cannot avoid liability for his crime through marriage.

Nonetheless, juries today remain skeptical about a woman's claims of rape if she is "promiscuous" - a vestige of the notion that a woman has one opportunity to decide whether she will be a good girl who waits until she is married or a bad girl who doesn't. As soon as she says "yes" once, she's "that kind of girl" forever.

The crime of rape, on this account, has more to do with a victim's character or "virtue" - her status, that is - than with her right to bodily integrity against all manner of sexual intrusion.

The Marital Rape Exemption: Another Relic

Even if one progresses beyond a status approach to the definition of a rape victim, one might nonetheless believe that with respect to any one man, a woman who says "yes" forfeits her right to say no forever after. This, after all, is the perspective of marital rape exemptions. Only a few decades ago, these exemptions permitted men in much of the country to force their wives to have intercourse without criminal accountability for rape. (Many jurisdictions, moreover, continue to rank marital rape as a less serious offense than the rape of a stranger).

A progenitor of the marital rape exemption in this country was Sir Matthew Hale, a former Chief Justice in England. When British practices were imported to the U.S., Hale's view on marital rape came along. Hale famously said in the Eighteenth Century that "the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract."

Some even argued in the late Twentieth Century for extension of the marital rape exemption to cohabitants. The argument was that limiting the rape license to married men was unfair to unmarried men who have undertaken committed, monogamous relationships that should entitle them to the same sexual access to their women as married men have to theirs. A number of states - including Connecticut, Kentucky, and Pennsylvania - apparently found such reasoning convincing, for they embodied it in their laws.

On this theory of rape, a woman may decide which men have and do not have consent, but once that initial decision is made, she cannot pick and choose on which occasions those men may exercise their prerogative. Consent thus becomes something like an unrestricted train pass on Amtrak.

Under such a view, the logic of Vela is unassailable. A woman who not only has chosen to consent to a particular man but has consented to him in the very same encounter has necessarily given up any right to stop him. She may still be able to decide to say no to some men (and perhaps even to decide on any given day whether to say yes again to a man with whom she has been intimate before). But if consensual penetration has already taken place, she must live with her decision, a variation on the expression, "you've made your bed; now lie in it."

An Alternative, Modern Conception of the Harm of Rape

One might understand the harm of rape very differently, however. On this alternative understanding, what is wrong with rape is that it compels a person to be subjected to sexual intercourse, when she has specifically and clearly indicated that she does not want to be.

She may choose to say "stop it" for any of a variety of reasons. Perhaps the particular man is unattractive to her, or she is not in the mood to have sex, or maybe she has an infection that unexpectedly renders the particular experience physically painful. Regardless of her reasons, though, the consent is hers to give or take away, on any particular occasion, as she so chooses.

This view takes account of an emotional reality: Regardless of what motivates a particular woman to refuse a man, his deliberate, forcible disregard of that refusal is a traumatizing and humiliating experience for her. It inflicts harm because it takes a decision about the most intimate, personal, and vulnerable matters in her life out of a woman's hands.

The harm of rape, then, is in forcibly depriving a person of her right of bodily integrity. The marital rapist - or any rapist who has once received consent - still violates the woman, because he treats her earlier consent as a transfer of dominion instead of an expression of desire that - to be freely given - must be freely revocable as well.

The Problem with a "Waiver" Approach to Consent

Not only does the Vela approach to sexual consent reflect a regressive view of women's sexuality, but it is also troubling for a second reason: It treats consent as the moral equivalent of a "waiver."

In legal parlance, "waiver" refers to a situation in which a person voluntarily decides to give up a right that he has. A defendant charged with a crime, for example, has the right to a trial. If he pleads guilty, he waives that right and thereby foregoes the benefits that a trial would have accorded him. He cannot later, after sentencing, decide that he would like to have a trial after all.

Similarly, a defendant who goes to trial has a Fifth Amendment right to refuse to take the witness stand. She may decide nonetheless to testify in her own behalf. But by doing so, she waives her Fifth Amendment right not to be compelled to answer a prosecutor's questions (at least those that fall within the scope of her direct examination).

In these situations, the person who has waived her rights has given them up and ordinarily cannot later decide to reassert them. The waiver, in other words, is irrevocable. The giving of consent, however, should not be.

Almost by definition, an assertion that "I don't want to do this anymore" negates an earlier consent. The reason that waivers are not always revocable is that the party who has obtained the waiver may develop an interest in relying on that waiver, because the party has reciprocally given up something valuable as well.

When a defendant takes the witness stand and waives her Fifth Amendment rights, for example, she provides the jury with evidence that the prosecutor now has an interest in rebutting, an interest that was not present prior to the defendant's testifying. It would accordingly be unfair to deny the prosecutor an opportunity for cross-examination under these circumstances.

The Myth of the Unstoppable Male

Should consent to sexual intercourse be treated as an irrevocable waiver? Those who argue in the affirmative believe that a man who has received consent will properly allow his biological urges to take over, in a way that makes it unfair to demand of him that he stop. He has, in other words, relinquished his obligation to exercise self-control, in response to the woman's invitation.

As the brief in support of the defendant in John Z. put it, "[b]y essence of the act of sexual intercourse, a male's primal urge to reproduce is aroused. It is therefore unreasonable for a female and the law to expect a male to cease having sexual intercourse immediately upon her withdrawal of consent."

Giving legal protection to a male's unstoppable "primal urge" treats the man's sexual desire as a bullet that - once fired - is physically impossible to stop. This view has significant implications for women's safety and liberty.

Taken to its logical conclusion, such an approach requires women to restrict their behaviors in all sorts of ways - including how they dress and whether they appear in public unescorted - if they are to avoid being sexually assaulted. It removes male accountability for sexual assault and instead places responsibility upon the woman to prove that she took all possible steps to avoid awakening the man's primal urge.

Just like the status definition of the harm of rape (suggesting that rape only counts when it happens to virgins and not to the "promiscuous"), the myth of the unstoppable male effectively regulates women in the guise of defining sexual assault. In fact, it may be precisely the desire to dominate and punish a woman who has behaved like a "tease" that motivates men to force them to continue to have sex after consent has been unambiguously withdrawn. In that sense, the sexual act that proceeds after a woman's withdrawal of consent is no longer truly the "same" act as that which took place while her partner still had consent.

That puts the law to a choice: It must either punish aroused men who inflict forcible intercourse, or condone the violent punishment of fickle women who frustrate the "primal urge."

No Means No, Whenever and to Whomever it is Said

Many of us are loath to regulate intimacy. Some of my readers may even remember the infamous Antioch Code, in which male college students were expected to ask female companions' permission for each advancing stage of intimacy in a sexual encounter. Comedians had a field day with the Antioch Code, including sketches in which a male would say, "May I now escalate our level of intimacy by moving my lips from your neck to your ear?"

In a democracy, it would seem, consenting adults should generally be free to engage in sexual relationships without government oversight or instructions on how to escalate intimacy. That being said, however, the reality of consent is a crucial precondition to such freedom. The liberty to harm another is not, and should not be, protected.

Freedom thus requires that consent not be presumed or irrevocable - but actual and true. So that women may decide whether or not to have or to continue to have sex, then, free men must be capable of resisting primal urges, no matter how strong or at what point they emerge. Those men who cannot or will not do so are sexual predators and should be legally recognized as such.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark

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